dissenting.
I respectfully dissent from the majority’s treatment of appellant’s first and second points of error.
The record reveals that appellant timely filed a sworn motion for probation for an offense that Tex.Code Crim.P.Ann. art. 42.-12, sec. 3g(a)(l)(D) (Vernon Supp.1987) exempts from eligibility for probation. He thereafter offered proof to support the motion, as follows:
[DEFENSE COUNSEL:] Have you ever been convicted in this state or any other state of the United States of a felony?
[THE DEFENDANT:] No, sir.
[DEFENSE COUNSEL:] Have you ever received probation in this state or any other state of the United States?
[THE DEFENDANT:] No, sir.
[DEFENSE COUNSEL:] In fact, you have never before been convicted of a misdemeanor other than traffic tickets?
[THE DEFENDANT:] That’s about all.
This colloquy, customary and necessary to prove eligibility for a probated sentence, evinces clearly that appellant and his counsel both believed that a probated sentence was within the range of punishment attached to the offense. I cannot believe that the trial judge was unaware that both the appellant and his counsel were attempting to qualify the accused for probation. Assuming that this was true, it is difficult for me to understand why the judge did not take the 30 seconds necessary to advise the appellant that he was ineligible by law to be granted probation.
Judge Clinton’s observations in his concurring opinion in Ex parte Williams, 704 S.W.2d 773, 778 (Tex.Crim.App.1986), seem altogether pertinent here:
[W]hen before trial begins an accused properly files a written sworn motion for probation and persists in pleading guilty or nolo contendere in order to have a jury assess punishment, or when an accused waives trial by jury in favor of a trial before the court, pleads guilty or nolo contendere and timely requests the judge of the trial court to place him on probation, before accepting either plea the judge must correctly admonish him whether in the circumstances of the case probation is, as a matter of law, really within the range of punishment attached to the offense.
The scenario described in Judge Clinton’s observation occurred in the instant case. Before trial, appellant filed a written sworn motion for probation and pled guilty before the court, offered proof in support of his application for probation, and apparently after his plea was accepted, and the court imposed a 10-year sentence, was informed that he was not even qualified to receive probation. From his perspective, this must surely seem like unconscionable gamesmanship, with his future and liberty at stake — and trivialized. Courts should not allow themselves to be placed, or perceived to be placed, in such a questionable posture. Judicial passivity, under these circumstances, undermines confidence in the fairness of the judicial process and is wholly ineffectual.
Because the court failed to correctly admonish the appellant, his plea before the court could not be “knowing and voluntary,” as I understand the concept. The fact that the court did give other required admonishments does not, as Judge Clinton observed, constitute substantial compliance with Tex.Code Crim.P.Ann. art. 26.13(a)(1) (Vernon Supp.1987), where the admonishment is relevant to the voluntariness of the plea.
I would sustain the first and second points of error, reverse the trial court’s judgment, and remand for a new trial.